Allahabad High Court
Chanda Madam @ Chanda Devi vs State Of U.P. And Another on 29 January, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:13155 Court No. - 92 Case :- APPLICATION U/S 482 No. - 43603 of 2023 Applicant :- Chanda Madam @ Chanda Devi Opposite Party :- State of U.P. and Another Counsel for Applicant :- Irfan Chaudhary,Srijan Pandey Counsel for Opposite Party :- G.A. Hon'ble Prashant Kumar,J.
1. Heard Sri Srijan Pandey, learned counsel for the applicant, Sri Shashidhar Pandey, learned A.G.A. for the State-O.P. no.1 and perused the record.
2. The present application under Section 482 Cr.P.C. has been filed by the applicant praying for quashing charge sheet dated 27.11.2022, cognizance order dated 19.6.2023 and the entire criminal proceedings of Criminal Case No.16522/9 of 2023 (State vs. Chanda Devi and others), arising out of Case Crime No.18 of 2022, under Sections 3, 4, 5, 6 and 7 of the Immoral Traffic (Prevention) Act, 1956, Police Station-Shamli, District-Shamli pending in the Court of Chief Judicial Magistrate, Shamli.
3. In the instant matter, an FIR was lodged by O.P. no.2, Inspector Incharge, on 4.1.2022 under Section 3, 4, 5 and 7 of the Immoral Traffic (Prevention) Act, 1956 against the applicant and six others. As per FIR, the informant/O.P. no.2 on receiving information from the Circle Officer about carrying out of some sexual racket at 'Urva Acupressure Spa and Saloon' situated at Kanika Complex, Shamli, along with team of police personnel conducted raid on the said premises. During raid, few men and women were caught red handed in objectionable condition. All the women unanimously stated that accused Chanda (applicant herein) was the owner of the Spa and Saloon, who had employed them on monthly salary of Rs.10,000/-. It is further alleged by these women that they carried out sexual acts as per customers' desires, due to their financial constraints.
4. Learned counsel for the applicant submits that the present FIR has not been lodged as per provisions of Section 15 of the Immoral Traffic (Prevention) Act, 1956. He further submits that no public witness was called for as mandated by Section 15 of the Act, making registration of the FIR in the teeth of law. He further submits that the applicant, who is a widow lady, is a registered acupuncturist having her training from Acupressure Research and Training and Treatment Institute and runs her business at 'Urva Acupressure Spa and Saloon' at the first floor of the complex and nothing to do with the business carried out at the ground floor of the complex. All the employees of the applicant, who have been arrayed as co-accused in the FIR, are duly registered acupuncturist having requisite qualifications and training. He submits that the police officials have been harassing the applicant with intention to get wrongful monetary gain from her and pursuant thereto, the applicant filed an application on 3.6.2021 before the Senior Superintendent of Police, Shamli as well as the District Magistrate, Shamli seeking protection from the concerned officials but when no action was taken, the applicant preferred Writ C No.14411 of 2021 before this Court. Vide order dated 2.9.2021, the writ petition was disposed of with direction to respondent authorities to permit the applicant (petitioner therein) to run her business, in case, she had all valid approvals and licenses and runs her business in accordance with law. He further submits that co-accused persons of this case have already been granted interim protection by Co-ordinate Benches of this Court vide orders dated 2.3.2023 and 28.10.2023 passed in Application U/S 482 No.-40509 of 2022 (Neha @ Nisha and others vs. State of U.P. and another) and Application U/S 482 No.-30815 of 2023 (Sachin Vs. State of U.P. and another) respectively. He further submits that neither there is allegation against the applicant for management/assistance in running of any brothel, nor there are any allegations against her for procuring any person to do prostitution. In fact, the applicant has never committed any offence as alleged against her. Further submission is that no offence against the applicant is disclosed and the court below has utterly failed to consider that prima facie no case is made out against the applicant. He also pointed out certain documents in support of his contention.
5. Per contra, learned A.G.A. vehemently opposes the application and contends that the applicant is the main person, who was running the brothel, under the guise of Acupressure Spa and Saloon and this fact is also fortified from the averments contained in the charge sheet. He further submits that some of the girls working in the spa of the applicant, were foreigners and resident of Nepal. He submits that the allegation against the applicant is of immoral trafficking of girls by taking advantage of their miserable conditions, hence, the applicant deserves no leniency by this Court. He further submits that the Court below has rightly summoned the applicant and no interference is required by this Court in the impugned order as well as the on going proceedings.
6. From the perusal of material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicant. All the submissions made at the bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court.
7. Hon'ble Supreme Court in the matter of State of Haryana Vs. Bhajan Lal 1992 Supp (1) SCC 335 has laid down the guidelines under which circumstances the Court should, in its inherent power, entertain an application under Section 482 Cr.P.C. The guidelines are as follows:-
"(i) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(ii) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(iii) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(iv) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(v) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(vi) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(vii) Where a criminal proceeding is manifestly attended with mala fides and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
8. Further, the Hon'ble Supreme Court in the cases of M/s Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra, AIR 2021 SC 1918, R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192, and lastly, Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283 has held that only those cases in which no prima facie case is made out can be considered in an application under Section 482 Cr.P.C.
9. The instant application does not fall under the guidelines laid down by the Hon'ble Supreme Court in the judgments mentioned above, and followed in a number of matters. Moreover, the facts as alleged cannot be said that, prima facie, no offence is made out against the applicant. It is only after the evidence and trial, it can be seen as to whether the offence, as alleged, has been committed or not.
10. Hence, the instant application filed under Section 482 Cr.P.C. cannot be entertained and is, accordingly, dismissed.
Order Date :- 29.1.2024 Manish Himwan